Jackson ex dem. Johnston v. Decker

Spencer, J. delivered the opinion of the court. If appears, by the case, that the title to recover exists in those of the lessors who were alien enemies at the commencement of this suit, resident within the kingdom of Great Britain ; and the questions submitted to us are, whether, under the circumstances of this case, such alienage is a bar to the suit; and whether the objection can be taken under the general issue. [422] The plaintiffs’ counsel have urged that the act of the legislar ture, (sess. 21. c. 72.) and the 9th article of the treaty of amity, commerce, and navigation, concluded the 19th of November, 1794, between Great Britain and the United States, preclude the defendant from setting up the alienage of the lessors, as a bar to their recovery. The act of April, 1798, declares valid conveyances thereafter to be made to any alien not being the subject of some power which, at the time of the conveyance, is at war with the United States of America, for the purpose of vesting the estate, thereby granted, in such alien; and it provides that it shall be lawful to and for such alien or aliens to have and to hold the same to his, her, or their heirs or assigns for ever, any plea of alienism to the contrary notwithstanding. The treaty provides that British subjects, who then held lands in the territories of the United States, should continue to hold them according to the nature and tenure of their respective estates and titles therein, and might grant, sell, or devise the same to whom they pleased, in like manner as if they were natives; and that neither they, nor their heirs or assigns, should, so far as might respect the said lands, and the legal remedies incident thereto, be regarded as aliens. The treaty, manifestly, has no application. Sir William Pultenog and the lessors of the plaintiff, though British subjects, neither held nor owned the lot in question, until long after the treaty; and it relates only to lands then held by British subjects, and not to any after acquired lands. The statute has reference merely to the title; it neither professes to regulate, nor does it at all relate to any remedy for the recovery of land purchased and held under its provisions. The plea of alienage, interposed to suspend a recovery during a war between the two governments, is very different from the plea of alienage which the statute meant to guard against and obviate. Without the protection of the statute, the lands purchased by Sir William Pvlteney would have been liable to escheat. To do away any plea of alienage, working a forfeiture and devesting the estate, was the sole object of the statute. It neither contemplated nor provided for the present case, which is a mere' temporary suspension of the remedy. Vattel, in speaking of lands or immovable goods, possessed by the subjects of an enemy, (book 3. c. 5. s. 76.) observes, “ la423 permitting them to purchase and possess these goods, he has, in this respect admitted them into the number of his subjects, but the income may be sequestered, for hindering the remittance of it to the enemy’s country evidently alluding to an alien enemy eommorant in the country. The laws of all commercial nations allow debts to be contracted in time of peace, between aliens and its subjects or citizens ; and yet, when war intervenes, it forbids an alien enemy, eommorant in the enemy’s country, from maintaining a suit for the recovery of such debts, pending the war. As well might the alien enemy, residing in the territory of his sovereign, complain that as he was suffered to acquire a debt in time of peace, he ought not to be hindered in time of war from collecting it. Such complaint would be in strict analogy with that of the plaintiffs’ in the present case. The answer in both would be the same: £t Your debt, contracted with the permission of the government's saved to you, and your lands, purchased under the sanctity of our laws, is saved to you; but neither of you can sue whilst you remain eommorant in the enemy’s country. The safety of the state requires that you should not get possession of your funds, during the war, lest they afford you the means of making remittances to the enemy’s country.” The general issue of not guilty in ejectment, puts in issue the right of the lessors to make a demise for the purpose of maintaining an ejectment. If alien enemies, resident in the country of the enemy, cannot maintain the action during hostilities, as it is clear they cannot, they are incapable of making a valid demise for that purpose. The case of Bell v. Chapman (10 Johns. 183.) shows, that the alienage of the plaintiff may be pleaded in bar, or abatement; and whatever may be pleaded in bar, may, in ejectment, be given in evidence under the general issue, provided the matter existed at the commencement of the suit. Sellon, (vol. 2. p. 110. c. 2.) speaking of the defence in ejectment, says, that pleas in bar, or abatement, are now seldom pleaded; for the defendant is bound, by the consent rule, to plead not guilty. It is rendered unnecessary to notice the other points in the ease. With respect to them, I will only say, that they do not stand at all in the way of the plaintiff’s recovery. The title-of the lessors was already made out, and the evidence offered was properly rejected. Judgment for the defendant.